The NDPS Act imposes stringent parameters for granting bail, requiring prima facie satisfaction that the accused is not guilty and is not likely to commit further offences, and the presumption of guilt is almost contrary to the Cr.PC.

JUDGMENT :

Heard Shri L.R. Mazumder, learned Counsel for the petitioner, namely, Bablu Pandey, who has filed this bail application under Section 439 of the Cr.P.C. praying for bail in connection with Bazaricherra P.S. Case No. 154/2021 under Section 21 (C) of NDPS Act. The petitioner was arrested on 23.08.2021.

2. This Court has been informed that the prayer for bail were rejected by this Court on two occasions vide orders dated 18.04.2022 and 12.08.2022.

3. Shri Mazumder, the learned counsel for the petitioner has submitted that the investigation is over and the charge sheet has been submitted and the petitioner is in custody for about 836 days and therefore, his prayer for bail may be considered.

4. On the other hand, Ms. A. Begum, learned Addl. Public Prosecutor, Assam has strenuously opposed the prayer for bail.

5. The materials on record including the scanned copies of the case records of Special NDPS Case No. 80/2021 have been carefully perused.

6. It reveals that a huge cache of contraband, namely, Codeine Phosphate Syrup was seized. The cache amounted to 40,000 bottles of 100 ml each in 250 cartons. The seizure was made from a vehicle (a red colour truck) bearing registration No. WB 11 F 0650 of which the petitioner was the driver. The FIR itself states that the petitioner had revealed that the consignment was loaded at Guwahati and was going towards Agartala. The contraband was hidden in the truck which was loaded with fruits (Naspati).

7. The FSL report dated 06.09.2021 reveals positive test for Codeine and the amount was found to be 165.93 mg.

8. This Court in the earlier order dated 12.08.2022 had discussed the provisions of Section 37 of the NDPS Act and had observed that the said Section starts with a non-obstante clause and overrides all provisions of the Cr.PC. Further, Section 37(2) makes it clear that the limitations on grant of bail are in addition to the limitations in the Cr.PC or any other law for the time being in force.

9. On an analysis of Section 37 with regard to bail, it can be seen that the NDPS Act being a special enactment which has an inbuilt mechanism with regard to bail has introduced two statutory restrictions before grant of bail apart from giving an opportunity to the Public Prosecutor which are as follows:

(i) There has to be prima facie satisfaction regarding existence of reasonable grounds that the accused is not guilty and

(ii) The accused is not likely to commit any offence while on bail.

As noted above, the aforesaid conditions are in addition to the limitations under the Cr.PC or any other law relating to bail.

10. Thus, it is seen that the parameters for consideration of a bail under the NDPS Act are not the same as under the Cr.PC. Under the present Act not only the conditions are more stringent and narrow, the privileges which would otherwise be available under the Cr.PC are also not relevant. As regards the presumption of guilt, the same is almost contrary in the NDPS Act wherein the Court has to come to a satisfaction that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The aforesaid satisfaction is a subjective one which are to be based on the materials on record.

11. On the aforesaid expression “reasonable grounds”, the Hon’ble Supreme Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal reported in AIR 2022 SC 3444 after discussing the observations made in earlier cases has held as under:

“14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additio